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[2021] ZASCA 160
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National Prosecuting Authority v Public Servants Association obo Meintjies and Others; he Minister of Justice and Correctional Services and Director-General: Department of Justice and Constitutional Development v Public Servants Association obo Meintjies and Others (353/2020; 354/2020) [2021] ZASCA 160; [2022] 2 BLLR 174 (SCA); [2022] 1 All SA 353 (SCA); (2022) 43 ILJ 350 (SCA); 2022 (3) SA 409 (SCA) (17 November 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
nos: 353/2020 and 354/2020
In
the matter between:
THE
NATIONAL PROSECUTING AUTHORITY
APPELLANT
and
PUBLIC
SERVANTS ASSOCIATION obo
MEINTJIES
& 55 OTHERS
FIRST RESPONDENT
MINISTER
OF JUSTICE AND CORRECTIONAL
SERVCES
SECOND RESPONDENT
DIRECTOR-GENERAL:
DEPARTMENT OF JUSTICE
AND
CONSTITUTIONAL DEVELOPMENT
THIRD RESPONDENT
MINISTER
OF PUBLIC SERVICE
AND
ADMINISTRATION
FOURTH RESPONDENT
MINISTER
OF FINANCE
FIFTH RESPONDENT
GOVERNMENT
EMPLOYEES PENSION FUND
SIXTH RESPONDENT
AND
THE
MINISTER OF JUSTICE AND CORRECTIONAL
SERVICES
FIRST APPELLANT
DIRECTOR-GENERAL:
DEPARTMENT OF JUSTICE
AND
CONSTITUTIONAL DEVELOPMENT
SECOND APPELLANT
and
PUBLIC
SERVANTS ASSOCIATION obo
MEINTJIES
& 55 OTHERS
FIRST RESPONDENT
MINISTER
OF PUBLIC SERVICE
AND
ADMINISTRATION
SECOND RESPONDENT
NATIONAL
PROSECUTING AUTHORITY
THIRD RESPONDENT
MINISTER
OF FINANCE
FOURTH RESPONDENT
GOVERNMENT
EMPLOYEES PENSION FUND
FIFTH RESPONDENT
Neutral
citation:
The National Prosecuting Authority v PSA obo
Meintjies and 55 others and Others
(Case no:
353/2020) and
The Minister of Justice and
Correctional Services and Director-General: DoJCD v PSA obo Meintjies
and 55 others and Others
(Case no: 354/2020)
[2021] ZASCA 160
(SCA) (17 November 2021)
Coram:
SALDULKER, VAN DER MERWE, MOLEMELA, MOKGOHLOA and HUGHES
JJA
Heard
:
23
August 2021
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives
by email, publication on the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to
be 14h30 on 17 November 2021.
Summary:
Court – jurisdiction of
High Court in employment-related matter – proper analysis of
applicant’s pleadings (notice
of motion and founding affidavit)
required to ascertain legal basis of claim – legal basis of
applicant’s claim unfair
labour practice – not
justiciable in High Court – it should have struck matter from
roll for want of jurisdiction.
ORDER
On
appeal from:
Gauteng Division of the High
Court, Pretoria (Van der Westhuizen J sitting as court of first
instance):
1
The appeal is upheld with costs, including the costs of two counsel
where so
employed.
2
The order of the high court is set aside and replaced with the
following:
‘
The
application is struck from the roll with costs, including the costs
of two counsel where so employed.’
JUDGMENT
Molemela
JA
Introduction
[1]
Central
to this appeal is whether the Occupational Specific Dispensation
(OSD) structure of remuneration was, as contended for by
the first
respondent, introduced to the National Prosecuting Authority (NPA)
and made applicable to the posts held by the Deputy
Directors of
Public Prosecution (DDPPs) and Chief Prosecutors (CPs).
[1]
A dispute regarding this aspect resulted in the
Public Servants Association (PSA), a trade union, launching an
application on behalf of 56 DDPPs and CPs at the Gauteng Division of
the High Court, Pretoria (the high court). The NPA was cited
as the
first respondent; the Minister of Justice and Correctional Services
as the second respondent; the Minister of Public Service
and
Administration as the third respondent; the Minister of Finance as
the fourth respondent; the Government Employees Pension
Fund, a
pension fund scheme for government employees, as the fifth
respondent; and the Director-General of the Department of Justice
and
Constitutional Development (Director-General) as the sixth
respondent. Only the NPA, the Minister of Justice and Correctional
Services (the Minister) and the Director-General opposed the
application. The application served before van der Westhuizen J.
Background
facts
[2]
It is common cause that negotiations on
wage and other collective bargaining issues had taken place at the
Public Service Co-ordinating
Bargaining Council (PSCBC) in 2007.
These negotiations culminated in several collective agreements being
concluded. Since the PSA
alleges that those collective agreements are
the genesis of this dispute and that the erstwhile National Director
of Public Prosecutions,
Mr Nxasana, (NDPP) approved the translation
of the OSD salary structure to the DDPPs and CPs. It is therefore
necessary to give
a brief overview of what those collective
agreements entailed.
[3]
In terms of PSCBC Resolution 1 of 2007, the OSD
salary structure was to be implemented to employees in the legal
profession within
the justice cluster with effect from 1 July 2007.
In terms of that Resolution, the translation measures for the
movement to the
new structure would be dealt with at the relevant
sectoral bargaining council.
[4]
In compliance with PSCBC Resolution 1 of 2007,
during or about 7
February 2008, the General Public Service Sector Bargaining Council
(GPSSBC) negotiated and concluded a collective agreement between
the
State as employer and various trade unions representing government
employees, regarding the implementation of the OSD for legally
qualified categories of employees. This
agreement is commonly referred to as GPSSBC Resolution 1 of 2008. Its
stated objective was to introduce the OSD salary structure
for
legally qualified professionals falling within the occupational
categories of State Attorney, Family Advocate, State Law Advisor,
Legal Administration Officer, Master, Registrar, Maintenance Officer
and Estate Controller. According to the PSA, GPSSBC Resolution
1 of
2008 was meant for civil servants of certain categories who were
legally qualified and rendered in-house legal services.
[5]
The
OSD provided for in GPSSBC Resolution 1 of 2008 not only created a
unique remuneration structure, but also introduced different
career
streams. In order to enhance career pathing, it introduced the
following work streams: training (LP1 to LP2); entry level
production
(LP3 to LP8; EC1 to EC4 and MR1 to MR5); advanced production level
(LP5 to LP9); specialist level (LP10); and supervisory
level (MR8).
It was made clear that in relation to
the production specialist stream, the number of
posts created would
be subject to norms to be determined by the Departments. GPSSBC
Resolution 1 of 2008 further stipulated that
a dispute resolution
mechanism in terms of which any dispute about the interpretation or
application of that collective agreement
was to be referred to the
Bargaining Council
[2]
for
resolution.
[6]
On 14
February 2008, the Minister, in contemplation of s 18(1) of the
National
Prosecuting
Authority Act 32 of 1998 (NPA Act), issued a determination pertaining
to the revised salaries for DDPPs, CPs and Chief
Specialist
Investigators.
[3]
No mention of
the OSD was made in that determination. It is common cause that the
DDPPs are appointed in terms of s 15 of the NPA
Act and that the NPA
Act does not specifically deal with the appointment of CPs and Chief
Specialist Investigators. Section 18(1)
provides that the DDPPs and
prosecutors shall be paid a salary in accordance with the scale
determined, from time to time by notice
in the government gazette, by
the Minister, after consultation with the NDPP and the Minister for
Public Service and Administration,
with the concurrence of the
Minister of Finance. Section 18(2) of the same Act stipulates that
‘different categories of salaries
and salary scales may be
determined in respect of different categories of [DDPPs] and
prosecutors’.
[7]
On 7
October 2008, the Minister, acting in terms of s 18(1) of the NPA
Act, determined a first phase translation (on the same basis
as
provided for in the OSD for legally qualified professionals as per
GPSSBC Resolution 1 of 2008) and setting out new salary ranges
for
prosecutors with effect from 1 July 2007.
[4]
On 2 December 2010, the Minister, within the contemplation of the
same provision, published a determination (the 2010 Determination)
in
terms of which he announced that a second stage translation had been
negotiated and that the determination of the OSD and second
phase
translation for prosecutors was in line with the OSD determined in
GPSSBC Resolution 1 of 2008.
[5]
The 2010 Determination, as published in the government gazette, was
couched as follows:
‘
DETERMINATION
OF SALARIES OF PROSECUTORS UNDER SECTION 18(1) OF THE NATIONAL
PROSECUTING ACT, 1998
WHEREAS
the former Minister for Justice and Constitutional Development, as
per Government Notice No 1088 published in Government
Gazette No
31486 of 7 October 2008, determined as the first phase translation,
on the same basis as provided for
in the Occupation Specific
Determination for legally qualified professionals as per GPSSBC
Resolution 1 of 2008 and pending a final
determination, new salaries
for prosecutors with effect from 1 July 2007;
AND
WHEREAS a second phase translation and determination has been
negotiated with the Department of Public Service and Administration
in line with
abovementioned Occupation Specific Dispensation;
NOW
THEREFORE, I, Jeffrey Thamsanqa Radebe, Minister for Justice and
Constitutional Development, acting under section 18(1) of the
National Prosecuting Authority Act, 1998 (Act No. 32 of 1998), and
after consultation with the National Director of Public Prosecutions
and the Minister for the Public Service and Administration, and with
the concurrence of the Minister of Finance, hereby determine
an
Occupation Specific Dispensation and second phase translation for
prosecutors as per Schedule, with effect from 1 July 2007.’
(My
emphasis.)
[8]
The
Schedule attached to the 2010 Determination (the Schedule) stipulated
that the objective of that determination was to provide
for a unique
remuneration structure and to introduce the OSD and career
progression system for legally qualified professionals
‘as
defined in this determination’. It identified the desire to
provide for career-pathing opportunities based on competencies,
experience and performance as well as ‘the creation of a
specialist dispensation’ as some of the objectives of that
determination. Under the caption ‘scope’, it was stated
that ‘this determination applies to qualified legal
professionals in terms of section 16
[6]
of the NPA Act’.
[9]
The PSA contended that its members were entitled
to specific performance in respect of the collective agreements
concluded in the
bargaining councils. It asserted that the failure by
the NPA to implement the collective agreements and the 2010
Determination
constituted an unfair labour practice. In addition to
those assertions, the PSA contended that, following the publication
of the
2010 Determination, various meetings were held and
correspondence exchanged with a view to finalising the translation of
the DDPPs
and CPs to the OSD remuneration structure. According to the
PSA, these engagements culminated in the NDPP, on 29 July 2014,
approving
the recommendations made by the NPA’s Chief Director:
Human Resources and Development (Chief Director), in his memorandum
dated 18 July 2014, regarding the implementation of OSD structure in
respect of NPA employees employed at salary levels 13 and
14.
[10]
The PSA averred that the NDPP’s approval
evidenced an intention to bring the 56 DDPPs and CPs represented by
the PSA within
the ambit of Resolution 1 of 2008, and that insofar as
the individual employees consented to being translated, that
resolution
became applicable to them. Having taken the stance that
the NDPP’s approval was binding on the NPA, the PSA inter alia,
sought
an order declaring the NDPP’s approval lawful and
enforceable. In addition to relying on the NDPP’s approval, the
PSA
also placed reliance on a memorandum from the Chief Executive
Officer of the NPA, Ms Karen van Rensburg (the CEO) dated 24 November
2014, in terms of which the DDPP’s were inter alia informed
that the proposed implementation date for migration to LP10 in
the
NPA was 1 April 2015.
[11]
During the hearing of the application at the high
court, the appellants contended that the high court did not have the
jurisdiction
to adjudicate the matter because the PSA’s
application was a quintessential labour dispute which was to be
processed through
the mandatory dispute resolution procedures set out
in the Labour Relations Act 66 of 1995 (LRA). The appellants also
contended
that the high court could not exercise jurisdiction over
the dispute within the contemplation of s 77(3) of the Basic
Conditions
of Employment Act 75 of 1997 (BCEA) because the various
collective agreements relied upon by the PSA were inapplicable to
them.
[12]
In
dealing with the point
in
limine
raised in relation to jurisdiction, the high court took into account
that the PSA not only sought compliance with collective agreements
but, in addition, also sought compliance with the 2010 Determination
issued by the Minister, the NDPP’s approval (regarding
the
implementation of the OSD) and the memorandum compiled by the CEO
dated 24 November 2014.
[7]
It
accepted that the PSA’s prayer for specific performance was
premised on s 77(3) of the BCEA, which grants concurrent jurisdiction
to both the Labour Court and the High Court in relation to any matter
concerning a contract of employment. The high court therefore
considered itself to have the jurisdiction to adjudicate the
application and dismissed the point
in
limine
.
It also dismissed the points
in
limine
raised in relation to
lis
pendens
and prescription. These are aspects that will be dealt with at the
end of this judgment.
[13]
The reasoning of the high court regarding the
merits of the application, properly construed, was that inasmuch as s
18(2) of the
NPA Act recognises that different categories of salaries
and salary scales may be determined for different categories of DDPPs
and prosecutors, that provision does not make any distinction in
relation to the particular structure of remuneration. Thus, there
was
no bar precluding the translation of the DDPPs and CPs to the OSD
structure. The high court found that on a purposive interpretation
of
the 2010 Determination, there was nothing unlawful about the NDPP
approving a recommendation that suggested that the DDPPs and
CPs be
translated to the OSD salary structure. It also found that the DDPPs
and CPs had, in line with the NDPP’s approval,
completed and
signed the relevant documents, thus indicating their consent to
translate from the salary structure known as Senior
Management
Service dispensation (SMS) to the OSD. It accordingly held that the
PSA was entitled to the relief of specific performance
relating to
the implementation of the 2010 Determination, as approved by the NDPP
on behalf of the NPA on 29 July 2014. The high
court declared that
the NDPP’s approval regarding the implementation of OSD was
‘lawful and enforceable’ and
had to be complied with.
[14]
Dissatisfied with the orders granted by the high court, the NPA, the
Minister and the Director-General
sought the high court’s leave
to appeal its judgment but were unsuccessful. The same parties then
lodged two separate applications
(with the NPA being an applicant in
one application and the Minister and the Director-General being the
applicants in the other),
petitioning this Court to grant them leave
to appeal the high court’s judgment. Having considered the two
applications, this
Court, for the sake of convenience, issued one
order in terms of which all the applicants (hereafter jointly
referred to as the
appellants) were granted leave to appeal to this
Court against the order of the high court. Although there are in
essence two appeals
before us, these were dealt with simultaneously.
Did
the high court have jurisdiction to adjudicate the application?
[15]
It is trite that both the LRA and the BCEA grant the Labour Court
exclusive jurisdiction in respect
of certain matters. Moreover, some
disputes must be finally resolved through arbitration.
[8]
However, the High Court’s jurisdiction is not ousted by s
157(1) of the LRA merely because a dispute falls within the overall
sphere of employment relations. This is because in terms of s 157(2)
of that Act, the High Court and the Labour Court share concurrent
jurisdiction in respect of employment-related disputes over which the
Labour Court does not have exclusive jurisdiction.
[9]
Similarly, s 77(3) of the BCEA, grants the Labour Court and High
Court concurrent jurisdiction in respect of any matter concerning
a
contract of employment irrespective of whether any basic condition of
employment constitutes a term of that contract.
[16]
The fundamental question is whether the high court and the Labour
Court enjoyed concurrent jurisdiction
over the causes of action
relied upon by the PSA in its application. A plethora of judgments
have held that jurisdiction is determined
on the basis of the
pleadings and not the substantive merits of the case.
[10]
This Court in
Lewarne
v Focem International (Pty) Ltd
,
[11]
held that when a court’s jurisdiction is challenged, the court
should base its conclusion on the applicant’s pleadings,
as
they contain the legal basis of the claim under which the applicant
had chosen to invoke the court’s competence. In
Boxer
Superstores Mthatha and Another v MbenyaI
,
[12]
this Court held that ‘the high court has jurisdiction even if
the claim could also have been formulated as an unfair labour
practice’.
[17]
The approach recently laid down by the Constitutional Court in
Baloyi
v Public Protector
[13]
(
Baloyi
)
is instructive in relation to this appeal. That Court reaffirmed that
an assessment of jurisdiction must be based on an applicant’s
pleadings, as opposed to the substantive merits of the case.
[14]
It also observed that ‘the same set of facts may give rise to
several different causes of action’.
[15]
Where other potential causes of action exist, the employee is not
confined to only one.
[16]
The
Constitutional Court also observed that the mere potential for a
cause of action, like an unfair dismissal claim, does not
obligate a
litigant to frame her claim as one of unfair dismissal and to
approach the Labour Court notwithstanding that other potential
causes
of action exist.
[17]
It also
pointed out that the fact that a cause of action is limited to
certain fora must not be interpreted as obliging an applicant
only to
pursue that cause of action.
[18]
[18]
With all those principles in mind, I now consider whether the PSA’s
pleaded case elicited
a cause of action that is justiciable in the
high court. The question is whether PSA’s pleadings as gleaned
from the notice
of motion and the founding affidavit in its entirety,
revealed a claim requiring the high court to determine a matter
concerning
a contract of employment as envisaged in the BCEA. For a
proper perspective, it is necessary to preface a discussion on
jurisdiction
by sketching out the relief which the PSA sought at the
high court. The prayers were set out as follows in the Notice of
Motion:
‘
1.
The [NPA] to comply with the collective agreement dated 5 July 2007
being PSCBC
[19]
Resolution 1 of 2007;
2.
The [NPA] to comply with the collective agreement dated 7 February
2008 being
GPSSBC Resolution 1 of 2008;
3.
The [NPA] to comply with the government notice dated 2 December 2010
issued and
published by the Second Respondent acting in accordance
with s 18(1) of the Act;
DECLARING
[4]
That the NDPP’s approval regarding the implementation of the
OSD dated 29 July
2014 was lawful and enforceable and must be
complied with; and
[5]
That the memorandum dated 24 November 2014 from the Chief Executive
Officer of the
First Respondent, Ms Karen van Rensburg regarding the
“proposal on the implementation of the LP 1P in the NPA”
is lawful,
enforceable and created reasonable legitimate expectation
and must be complied with.
[6]
Ordering the [NPA] to pay the costs of this application;
[7]
Granting the Applicant further and/or alternative relief.’
[19]
It is clear from the Notice of Motion that the PSA founded its case
on a range of causes of action.
The first two prayers were for the
enforcement of the 2007 and 2008 collective agreements. It is of
significance that in terms
of s 18 of the NPA Act, the remuneration
of DDPPs and prosecutors is to be determined only in terms of that
Act. In that sense,
their remuneration is not collectively bargained.
The PSA emphasised that even though the genesis of the dispute was
GPSSBC Resolution
1 of 2008, the dispute was not about the
interpretation or application of that collective agreement. Rather,
its reliance on the
2008 resolution was premised on the NDPP having
approved that the new scheme (the OSD) mentioned in the 2008
resolution, which
was reaffirmed in the 2010 Determination, be made
applicable to the DDPPs and CPs. It is of significance that the high
court did
not grant prayers 1 and 2 (ie the relief pertaining to the
collective agreements). As there is no cross-appeal, there is no need
for those two prayers to detain us any further in this appeal.
[20]
On the authority of
Baloyi
,
it is permissible for a party to rely on more than one cause of
action.
[20]
It is therefore
noteworthy that in addition to seeking enforcement of collective
agreements, the PSA also located its dispute as
a contractual claim
within the contemplation of s 77(3) of the BCEA. The PSA also sought
an order declaring the NDPP’s approval,
lawful and enforceable.
In order to determine whether any averments were made to support the
relief sought, it is important to
consider the Notice of Motion and
the founding affidavit.
[21]
As I understand the PSA’s founding affidavit, the contractual
basis for the specific performance
relief it is seeking is hinged on
the 2010 Determination as well as the consultation that preceded it.
The PSA avers that, pursuant
to the Minister’s 2010
Determination, several engagements took place, culminating in the
NDPP approving the recommendation
of the Chief Director, which
essentially suggested the steps that needed to be followed in order
for the DDPPs and CPs to be translated
to OSD. According to the PSA,
the NDPP agreed that the OSD would be implemented to the DDPPs and
CPs who consented to the migration
from SMS to the OSD.
[22]
The PSA averred that the translation of the DDPPs and CPs had in
effect taken place because the
employees in question had, through
their signature of performance agreements which were premised on the
translation to the OSD
band level LP10, indicated their acceptance to
migrate from SMS to the OSD. This, it was contended, is what brought
the dispute
within contractual claims as envisaged in s 77(3) of the
BCEA. As mentioned before, that provision grants the Labour Court
concurrent
jurisdiction with the civil courts to hear and determine
any matter concerning a contract of employment, regardless of whether
any basic condition of employment constitutes a term of that
contract. The prayers in the Notice of Motion speak for themselves.
To my mind, prayer F is not at odds with the assertion of a
contractual obligation and thus falls within the ambit of s 77(3).
The contractual nature of the claim can also be gleaned from various
averments made by its deponent in the founding affidavit.
In
paragraph18 of the founding affidavit, which sets out the purpose of
the application, it is inter alia stated that ‘the
principal
purpose of this application is to seek specific performance and to
compel the [NPA] to comply with . . . the NDPP’s
approval
regarding the implementation of OSD dated 29 July 2014 . . . and the
memorandum dated 24 November 2014 from the Chief
Executive Officer .
. .’.
[23]
At para 45 the deponent asserted that she had, on the instructions of
the NPA, by inter alia
‘completion of a choice to translate,
which I did choose by signing a performance agreement’. She
also averred that
her colleagues had also completed documentation
exercising the same choices as she did. I am satisfied that the
averments made
in the pleadings in relation to the order of specific
performance and the declaratory order in relation to the NDPP’s
approval
sufficed to bring the matter within the jurisdiction of the
high court.
[24]
The existence of the agreement to translate the DDPPs and CPs
represented by the PSA is an issue
that speaks to prospects of
success on the merits and not jurisdiction. Similarly, a
consideration as to whether the PSA had succeeded
in proving the
existence of the agreement by attaching the relevant contracts in
substantiation of its allegations, is an aspect
that speaks to the
merits and not to jurisdiction. That this is so is plain from the
instructive approach set out in
Baloyi
, where the
Constitutional Court aptly stated as follows:
‘
When
assessing whether its jurisdiction is engaged, a court might be of
the view that a litigant should have pursued a different
cause of
action, or that she would have had a better chance of success had she
done so. However, these views are irrelevant to
the courts’
competence to hear the matter
.’
[21]
[25]
Being mindful of the warning sounded by the Constitutional Court (in
Baloyi
) against the conflation of the determination of a
court’s jurisdiction with prospects of success, I am of the
view that the
pleaded case as elicited in the PSA’s averments
mentioned in the foregoing paragraphs, sufficiently clothed the high
court
with jurisdiction in relation to compliance with the 2010
Determination and the NDPP’s approval dated 29 July 2014. The
point
in limine
relating to jurisdiction was rightly
dismissed. I turn now to the merits of the pleaded causes of action.
Analysis
of the merits
[26]
As stated before, the PSA’s relief of specific performance
inter alia sought to compel
compliance with the provisions of the
NDPP’s approval of the OSD scheme pursuant to the 2010
Determination. The 2010 Determination
should therefore not be
considered in isolation; due regard must be paid to the NDPP’s
approval and other documents issued
pursuant thereto. These include
letters and minutes of meetings.
[27]
The appellants contended that the NDPP did not have any say over the
salaries of DDPPs and CPs
because the clear provisions of s 18(1) of
the NPA Act clothe the authority to determine the salaries of DDPPs
and prosecutors
only on the Minister. They further contended that the
‘production specialist’ post was never created in the NPA
because
of a lack of funding. The appellants stressed that the NDPP’s
endorsement of the LP10 translation in respect of the DDPPs
and CPs
could not have granted him the right to exercise a power expressly
granted by legislation to the Minister. At best, the
NDPP’s
approval and the CEO’s memorandum dated 24
November 2014 was the first level of a government procedure which
requires the approval of the NDPP to be placed before the
Director-General
and ultimately before the Minister as part of the
consultation process, so the contention went.
[28]
I am mindful of the fact that s 18(2) of the NPA Act allows for
different categories of salaries
and salary scales to be determined
in respect of different categories of DDPPs and prosecutors. While
noting that the salary levels
of the DDPPs and CPs were not included
among the various categories of salary-levels mentioned in Annexure C
of the 2010 Determination,
I am unable to agree with any submission
that suggests, as a general proposition, that the OSD was not
envisaged for DDPPs. A
purposive reading of the 2010 Determination in its entirety certainly
does not support that conclusion. It bears noting that in
the
preamble of the 2010 Determination, the Minister acknowledged that
the determination was preceded by consultations with the
NDPP and the
Minister of Public Service and Administration. The occurrence of such
consultations is attested to by a memorandum
issued by the
Director-General, dated 13 August 2009, in terms of which it was
stated that ‘all qualifying legally qualified
employees
employed on salary levels 13 and 14 must translate to OSD’. It
is common cause that the DDPPs and CPs were at salary
level 14.
[29]
Although the DDPPs and CPs are not mentioned in the categories of
prosecutors listed in the translation
key for the first and second
phase translation (Annexures B and C to the 2010 Determination), this
does not detract from the fact
that the Schedule to the 2010
Determination introduced a work-stream referred to as ‘production
specialist’. Moreover,
in Annexure A to that Schedule, the job
titles of ‘litigation specialist’ and ‘Deputy
Director of Public Prosecutions
(Production)’ are listed under
the LP10 band. Paragraph 4.2 of that Schedule spells out that the
production specialist stream
was created to assist the NPA to recruit
and retain specialists in the legal profession whose posts require
active involvement
in court work. The suggestion, in the NDPP’s
approval, about DDPPs and CPs qualifying for approval if they, inter
alia, performed
not less than 80% of court-related work must be seen
against that background.
[30]
It is noteworthy that GPSSBC Resolution 1 of 2008 granted the
Departments the latitude to deal
with the number of posts created in
the litigation specialist stream subject to their own norms.
Similarly, the 2010 Determination
granted the NPA the latitude to
establish its own norms regarding the litigation specialist stream.
From my point of view, the
series of engagements with the DDPPs and
CPs regarding the OSD following the publishing of the 2010
Determination, the Chief Director’s
recommendations which were
duly approved by the NDPP on 29 July 2014, are all consistent with
the exercise of determining how the
litigation specialist stream
could be aligned to the NPA norms. The NDPP’s endorsement of
the OSD must be seen in that light.
For that reason, I am unable to
agree with the appellants’ contention that the NDPP’s
approval was unlawful.
[31]
As regards the enforceability of the NDPP’s approval, I agree
with the appellants’
contention that the NDPP’s
endorsement of the translation to the OSD could not be elevated to a
binding decision that could
finally determine the salaries of the
DDPPs and CPs. That this is so is manifest from the clear provisions
of s 18(1) of the NPA
Act, which not only requires the Minister’s
determination to be in consultation with the NDPP but also requires
the concurrence
of the Minister of Finance. Since the NDPP was not
authorised to determine the salaries of the DDPPs and CPs, it follows
that the
PSA’s assertion that the NDPP’s approval created
a legitimate expectation that its aggrieved members were entitled to
be translated to OSD, was misplaced.
[22]
This finding, however, is not dispositive of the appeal.
[32]
Another important consideration which was debated with counsel during
the hearing is as regards
the assertion that the DDPPs and CPs
evidenced their consent to the implementation of the OSD by signing
performance agreements.
For the reasons that follow, I am of the view
that the PSA’s claim on the implementation of any agreement
premised on the
NDPP’s approval fell to be dismissed.
[33]
It is clear that the NDPP’s approval of the Chief Director’s
recommendations was
not without conditions. It suggested that (i) the
Deputy Directors of Public Prosecution (DDPPs) on salary level 13 and
14 were
to be regarded as production specialist on the basis that
they performed not less than 80 percent production work; and, (ii)
the
qualifying DDPPs on level 13 and 14 were to be migrated out of
the Senior Management Service (SMS) salary dispensation to the OSD
on
salary level LP10, should they consent. The NDPP clearly envisaged
that the individual employees would have to consent to the
translation. Similarly, the CEO’s memorandum dated 24 November
2014, addressed to all Deputy National Directors and copied
to the
NDPP, also made it clear that the DDPPs and CPs would be ‘required
to relinquish their positions as members of the
SMS dispensation and
be classified as production units as opposed to management echelon’.
[34]
As mentioned before, even on the PSA’s own account of events,
the NDPP envisaged that the
respective DDPPs and CPs would have to
consent to the translation. It is of significance that the PSA in its
replying affidavit
stated: ‘consent to translate to OSD was a
prerequisite. Therefore, non-consenting [DDPPs and CPs] were not
translated to
OSD’. The recommendations in the Chief Director’s
letter clearly stipulated that the dispensation be migrated to those
DDPP’s who consented to the translation. In that same letter
(dated 18 July 2014) the Chief Director observed that ‘the
implementation of OSD is not automatic and requires a formal process
being undertaken’.
[35]
The Chief Director’s understanding can be accepted as correct
because in Annexure C to
the 2010 Determination, which dealt with the
second phase of the translation process, the salary levels of the
DDPPs and CPs were
not included among the various categories of
salary-levels listed in that document. It is also worth noting that
in her memorandum
dated 24 November 2014, the CEO remarked: ‘Since
the approval of the OSD, the NPA has been grappling with the
implementation
issues around implementation of LP10. Various
approaches and models have been discussed and up to this point, no
formal approval
was granted for the implementation of LP10’.
[36]
The minutes of the meetings held after the issuance of the CEO’s
memorandum are also of
significance. In the minutes dated 25 May
2015, it is recorded that ‘there are requirements that have to
be met at individual
level. We cannot say that everyone who is
currently on level 13 and 14 automatically [qualifies] because that
will include people
that do not necessarily do the work and don’t
want to do the work of a specialist litigator’. The importance
of the
consent of the respective DDPPs and CPs is recognisable from
this statement. Similarly, the minutes of the meeting held with the
CPs on 4 June 2015 recorded that ‘our commitment is such that
all people who are currently on salary levels 13 & 14,
which
includes you (Chief Prosecutors) who meet the requirements can
translate to LP10 if they exercise that option, having looked
at the
implication as individuals’.
[37]
Although the PSA averred in various paragraphs of the founding
affidavit that the DDPPs and CPs
had consented to be translated from
SMS level to LP10 and that their consent is self-evident from the
performance agreements, the
difficulty for the PSA is that no
performance agreement attests to this. The specimen performance
agreement handed in during oral
submissions at the high court makes
no allusion to a consent to translation. Insofar as the specimen
performance contract does
not reflect consent as envisaged in the
NDPP’s approval, the upshot of this is that the consent of the
DDPPs and CPs remains
an unsubstantiated term of the very agreement
the PSA is seeking to enforce. On that basis alone, the PSA has not
shown an entitlement
which the high court could enforce as a
contractual obligation.
[38]
With specific reference to the deponent to the founding affidavit (Ms
Meintjies), it is noteworthy
that, having averred that she had
consented to the translation in accordance with the NDPP’s
approval, in Annexure A1 dated
3 March 2015, which was attached to
her performance agreement for the 1 April 2016-31 March 2016 cycle,
she stated the following:
‘
My
signing of this document is
not
to be understood as acceptance
of the
manner or date of the translation
as proposed by the
CEO in a letter dated 24 November 2014 addressed to Deputy National
Directors. It is categorically stated that
the contents of this
letter only came to my attention on 2 March 2015 per an email
forwarded by the DPP, Mr Mzinyathi. Attached
to the email of 2 March
2015 was a letter by the CEO dated 27 February 2015 addressed to all
NDPP, DPP, RH and Special Directors
in which reference is made to the
letter of 24 November 2014 with the said letter attached thereto. The
manner and date of the
translation
should be
in line with the
relevant instruments and prescripts governing OSD and LP10
translations
.’
(My emphasis.)
The
passage quoted above is a clear indication that her mere signature of
the performance agreement could not, without more, have
evidenced a
consent to be translated, as contended for by the PSA. In my view,
there is insufficient information to substantiate
her alleged
compliance with the requirements set out in the NDPP’s
approval, which were subsequently elucidated in the CEO’s
letter.
[39]
Quite apart from the fact that some of the correspondence from the
NPA shows that certain requirements
had to be met prior to the LP10
band being applicable to DDPPs and CPs, it is clear from various
documents annexed to the PSA’s
papers, including the minutes of
the meetings alluded to earlier in the judgment, that there was also
no unanimity on the implementation
date. The following assertion by
Ms Meintjies is striking:
‘
It
is important to note that the implementation date communicated in the
meeting of 25 May 2015 and on the memorandum dated 24 November
2014
is
not
the same date that was agreed upon at the bargaining
council. It is neither the date the [Minister of Justice] endorsed
nor the
date communicated by the [Minister of Public Service and
Administration] in their respective determinations. The common
implementation
date
agreed upon
and duly communicated by the
bargaining councils, [the Minister of Justice] and [the Minister of
Public Service and Administration]
for the purposes of OSD is 7 July
2007 and not 1 April 2015.’ (My emphasis.)
[40]
It is clear from the afore-mentioned passage that even after the
NDPP’s approval of the
Chief Director’s recommendation in
July 2014, there was still no finality regarding the agreed upon date
for the implementation
of the OSD to the DDPPs and CPs. The CEO
stated that ‘the implementation date cannot be earlier than the
1
st
of September 2014 as the approval was obtained on the
29
th
of July 2014’. Ms Meintjies’ disavowal of
the dates mentioned in the CEO’s memorandum does not assist the
PSA
in any way, seeing that she, in para 18.1.5 of her founding
affidavit, also sought compliance with that specific memorandum. On
the papers as they currently stand, the PSA’s averment that
‘the common implementation date agreed upon’ was
7 July
2007, cannot be correct.
[41]
As stated before, the appellants contended that the production
specialist post was never created
in the NPA because of a lack of
funding. It is quite telling that in their Request for Arbitration,
the PSA described the dispute
as being about ‘whether an
agreement was reached to the effect that DDPP on salary level 13 &
14 would be regarded as
being production specialists and that
qualifying DDPPs at level 13 & 14 will be migrated out of SMS
dispensation to OSD on
salary level LP10’. Clearly, there had
been no consensus on this aspect.
[42]
I am therefore of the view that even on the PSA’s own version
of events, none of the documents
furnished in the application point
to a consensus on the manner of implementation of the OSD for the
DDPPs and CPs. This means
that the PSA failed to prove the existence
of the agreement it sought to rely on. Its claim on the
implementation of any agreement
premised on the NDPP’s approval
therefore fell to be dismissed.
[43]
With the benefit of the analysis in the foregoing paragraphs, it is
now opportune to deal with
the points
in limine
raised in
relation to
lis pendens
and prescription. It is trite that a
party wishing to raise
lis pendens
bears the onus of proving
that there is a pending litigation between the same parties or their
proxies, in circumstances where
the causes of action are
substantially the same.
[44]
In the referral form submitted by Ms Meintjies to the Bargaining
Council, under the heading “Nature
of the Dispute”, her
dispute was described as an unfair labour practice pertaining to
promotion. Given the fact that a litigant
is not obliged to rely
exclusively on the cause of action it has pursued at its chosen
forum, nothing barred the PSA from pursuing
other causes of action
that are justiciable in the civil courts. It
follows that the fact that there
is a pending litigation pertaining
to a dispute of promotion before the Bargaining Council did not
preclude the PSA from seeking
specific performance as it did before
the high court. This is more so the case in circumstances where the
appellants have not denied
having raised a point
in limine
of
jurisdiction in terms of which they contended that the Bargaining
Council does not have jurisdiction to adjudicate the unfair
labour
practice dispute referred to it by the PSA, on the basis that it does
not qualify as a promotion dispute. In any event,
the PSA averred in
the founding affidavit that the proceedings at the Bargaining Council
have been stayed pending the finalisation
of this matter.
[45]
As regards the litigation pending at the Labour Court, it is evident
from the Notice of Motion
issued at the Labour Court that the cause
of action in that matter relates only to the appellants’
entitlement to cost-of-living
adjustments not remuneration; the cause
of action pursued in the high court was therefore different from the
one relating to the
review application that is pending at the Labour
Court.
[23]
It
follows that the point
in
limine
of
lis
pendens
had no merit and were correctly dismissed by the high court. The
point
in
limine
in relation to prescription was not persisted with before us and need
not detain us any further. Suffice it to merely mention that
given
the fact that the dispute at the Bargaining Council is still pending,
there can be no question of the application at the
high court having
been barred by prescription.
[46]
As regards costs, it has been stated in a plethora of cases that
labour disputes are constitutional
issues. I am of the view that the
proceedings in the high court and this Court activated the
well-established principle enunciated
in
Biowatch
Trust v Registrar: Genetic Resources and Others
.
[24]
Given the circumstances I have already explained, I am not persuaded
that the PSA’s conduct in launching its application
at the high
court warrants censure in the form of an adverse order of costs. In
the result, I would uphold the appeal, set aside
the order of the
high court and replace it with an order dismissing the application
with no order as to costs.
M
B MOLEMELA
JUDGE
OF APPEAL
Hughes
JA
Costs
[47]
I have had the benefit of reading the judgment of my colleague,
Molemela JA. I concur with the
reasoning and conclusions reached in
respect of the point
in limine
of jurisdiction ‘. . . it
is permissible for a party to rely on more than one cause of action.
It is therefore noteworthy
that in addition to seeking enforcement of
[the] collective agreements, the PSA also located its dispute as a
contractual claim
within the contemplation of s 77(3) of the BCEA’.
It is on this basis that I concur that the high court was
competent
to hear the application before it.
[48]
I take no issue with the reasoning on the merits. I however,
respectfully disagree with the costs
order granted. It is trite that
the issue of awarding costs lies within the discretion of the court
alone and generally the successful
party is entitled to their costs.
My disagreement lies with the conduct of the PSA in pursuing the
application for specific performance.
I am of the view that the
application by the PSA in the high court was ill-conceived and
manifestly inappropriate. Thus, the
PSA falls to be penalised with an
adverse costs order. I am mindful of the applicability of
Biowatch
in inherently constitutional matters, however, I am still
convinced that a costs order is appropriate against the PSA for the
reasons
which follow hereafter.
[49]
The PSA pursued this application in the high court having referred
two disputes on the facts
of the OSD issue to the Bargaining Council.
The first on 10 February 2016 which remains unresolved in respect of
‘an unfair
labour practice relating to promotion . . .
respondent [NPA] having failed to translate the . . . applicants from
SMS salary dispensation
to the OSD, and specifically LP10’.
Second, on 13 June 2016 a second dispute was launched with the
Bargaining Council requesting
an arbitration. In this dispute the PSA
sought a determination ‘whether an agreement was reached to the
effect that DDPP
on salary level 13 and 14 would be regarded as being
production specialist and that qualifying DDPPs on level 13 and 14
will be
migrated out of SMS dispensation to OSD on LP10’. This
dispute has been stayed pending the outcome of the high court
application.
Notably, the high court application for specific
performance was filed on 4 December 2017.
[50]
In the analysis of the merits above and on the PSA’s version
alone it was well established
that there were a host of shortcomings
with the conclusion of the agreement which the PSA sought to be
enforced. I do not propose
to repeat what is set out above on the
merits. However, of significance is the fact that the PSA was not
even certain whether an
agreement had been concluded. Yet, here they
were seeking specific performance of an agreement that they were not
sure existed.
[51]
The proper approach to establish whether an application was
manifestly
inappropriate was settled in
Lawyers
for Human Rights v Minister in the Presidency
and
Others
:
[25]
‘
Whether
an application is manifestly inappropriate depends on whether the
application was so unreasonable or out of line that it
constitutes an
abuse of the process of court. In
Beinash
,
Mahomed CJ stated there could not be an all encompassing
definition of “abuse of process” but that it could be
said in general terms “that an abuse of process takes place
where the procedures permitted by the rules of the Court to
facilitate the pursuit of the truth are used for a purpose extraneous
to that objective”. The Court held:
“
There
can be no doubt that every Court is entitled to protect itself and
others against an abuse of its processes. Where it is satisfied
that
the issue of a subpoena in a particular case indeed constitutes an
abuse it is quite entitled to set it aside. As was said
by De
Villiers JA in
Hudson
v Hudson and Another
1927
AD 259
at 268:
“
When
. . . the Court finds an attempt made to use for ulterior purposes
machinery devised for the better administration of justice,
it is the
duty of the Court to prevent such abuse.”
What does
constitute an abuse of the process of the Court is a matter which
needs to be determined by the circumstances of each
case. There can
be no all-encompassing definition of the concept of “abuse of
process”. It can be said in general terms,
however, that an
abuse of process takes place where the procedures permitted by the
Rules of the Court to facilitate the pursuit
of the truth are used
for a purpose extraneous to that objective.”’
[52]
Applying the above approach to the circumstances, that being the
pending disputes before the
Bargaining Council, despite the
inherent
constitutional
element present, in my view
the high court application was fundamentally misdirected,
unreasonable and inappropriate. Especially
so, regard being had that
the PSA was not even certain whether there was an agreement or not to
enforce. The PSA’s conduct
clearly amounts to an abuse of court
process and as such warrants an adverse costs order against them.
[53]
It is for the reasons above that I disagree with the costs order of
Molemela JA. However, I concur
with the judgment of Molemela JA
upholding the appeal and dismissing the application. As regards the
costs, I would order the PSA
to pay the costs, such costs to include
the costs of two counsel where so employed.
W HUGHES
JUDGE OF APPEAL
Saldulker
and Van der Merwe JJA (Mokgohloa JA concurring) (Majority judgment)
[54]
We have had the benefit of reading the judgment of our Sister,
Molemela JA. We respectfully disagree
with the finding that the high
court had jurisdiction to entertain the matter. For the reasons that
follow, we are of the view
that the high court should have struck the
matter from its roll for want of jurisdiction. We adopt the
nomenclature used by our
Colleague. We do not regard it necessary to
repeat the facts of the matter and refer only to those facts that are
necessary for
a proper understanding of this judgment.
[55]
In
Chirwa v Transnet
Limited and Others
[2007]
ZACC 23
;
2008 (4) SA 367
(CC);
2008 (3) BCLR 251
(CC),
the
Constitutional Court explained that the Labour Court and other
tribunals created under the LRA are uniquely qualified to handle
labour-related disputes. At para 47 it said:
‘
.
. . The purpose of labour law as embodied in the LRA is to provide a
comprehensive system of dispute resolution mechanisms, forums
and
remedies that are tailored to deal with all aspects of employment. It
was envisaged as a one-stop shop for all labour-related
disputes. The
LRA provides for matters such as discrimination in the workplace as
well as procedural fairness; with the view that
even if a labour
dispute implicates other rights, a litigant will be able to approach
the LRA structures to resolve the disputes.’
[56]
This does not mean, of course, that no employment-related claim is
justiciable in the high court.
Section 157 of the Labour Relations
Act 66 of 1995 (LRA) provides:
‘
157.
Jurisdiction of Labour Court
(1)
Subject to the Constitution and section 173, and except where this
Act provides otherwise,
the Labour Court has exclusive jurisdiction
in respect of all matters that elsewhere in terms of this Act or in
terms of any other
law are to be determined by the Labour Court.
(2)
The Labour Court has concurrent jurisdiction with the High Court in
respect of any
alleged or threatened violation of any fundamental
right entrenched in Chapter 2 of the Constitution of the Republic of
South Africa,
1996, and arising from -
(a)
employment and from labour relations.
.
. . .’
[57]
The relevant sections of the Basic Conditions of Employment Act 75 of
1997 (BCEA) provide as
follows:
‘
77(1)
Subject to the Constitution and the jurisdiction of the Labour Appeal
Court, and except where this Act provides
otherwise, the Labour Court
has exclusive jurisdiction in respect of all matters in terms of this
Act.
.
. .
77(3)
The Labour Court has concurrent jurisdiction with the civil courts to
hear and determine any matter concerning
a contract of employment,
irrespective of whether any basic condition of employment constitutes
a term of that contract.’
[58]
In
Gcaba v Minister of Safety and Security
[2009] ZACC 26
;
2010 (1) SA 238
(CC);
2010 (1) BCLR 35
(CC), the Constitutional Court
made it clear that an assessment of jurisdiction must be based on an
applicant’s pleadings.
At para 75, the following was said:
‘
.
. . In the event of the Court’s jurisdiction being challenged .
. . the applicant’s pleadings are the determining
factor. They
contain the legal basis of the claim under which the applicant seeks
to invoke the court’s competence. While
the pleadings –
including in motion proceedings, not only the formal terminology of
the notice of motion, but also the contents
of the supporting
affidavits – must be interpreted to establish what the legal
basis of the applicant’s claim is, it
is not for the court to
say that the facts asserted by the applicant would also sustain
another claim, cognisable only in another
court. If however the
pleadings, properly interpreted, establish that the applicant is
asserting a claim under the LRA, one that
is to be determined
exclusively by the Labour Court, the High Court would lack
jurisdiction. . . .’
[59]
The recent judgment of the Constitutional Court in
Baloyi v Public
Protector and Others
[2020] ZACC 27
;
2021 (2) BCLR 101
(CC);
[2021] 4 BLLR 325
(CC) , provides an example of the application of
these well-known principles. There Ms Baloyi was employed by the
office of the
Public Protector on a five-year contract, with a
six-month probation period, which could be extended. After the expiry
of the probation
period, she was invited to make representations as
to the confirmation of her employment contract. Sometime thereafter
she received
a letter terminating her contract. Ms Baloyi launched an
application on the basis that the termination of her employment
contract
had been unlawful.
[60]
The high court dismissed Ms Baloyi’s application on the ground
that it did not have jurisdiction
over the dispute and that it should
have been brought before the Labour Court. However, the
Constitutional Court held that the
high court had erred in dismissing
Ms Baloyi’s application on the basis that it essentially
entailed a labour dispute and
that its jurisdiction was not engaged.
It held that on an analysis of her pleaded case, Ms Baloyi claimed
relief on three grounds,
none of which had to be determined in terms
of the LRA or fell within the exclusive jurisdiction of the
Labour Court. These
grounds were that the termination of her
employment contract constituted a breach of contract, that the
official who had purported
to terminate it had no power to do so and
that the decision to terminate the contract had been made in bad
faith and for an ulterior
purpose. Each case must, of course, be
decided on its own facts and, as we shall show, the facts of this
case differed markedly
from those of Baloyi.
[61]
A perusal of the application of the PSA makes it quite clear that the
PSA sought the implementation
of the 2010 Determination by the
‘translation’ of the DDPPs and CPs to the OSD specialist
work stream on the LP-10
OSD band. On the facts of this case,
however, the high court could only have been clothed with
jurisdiction if this outcome had
been claimed on the ground that the
terms of the individual employment contracts between the DDDPs and
CPs and the NPA obliged
the NPA to act accordingly. Thus, the notice
of motion and founding affidavit has to be analysed to ascertain
whether the enforcement
of employment contract terms was relied upon.
In performing this exercise, substance must prevail over form and
proper regard must
be had to context.
[62]
The first indicator in this regard is that the PSA was the applicant
in its own name. As a trade
union it was not a party to any of the
employment contracts in question. This strongly points to the absence
of an intention to
enforce the terms of individual contracts of
employment. The material relief claimed in the notice of motion is
quoted in the judgment
of Molemela JA. It suffices to say that the
notice of motion in no way conveyed a reliance on employment
contracts. In the founding
affidavit the deponent said ‘I am
advised that this is a contractual dispute (applicants seek specific
performance) . . .’
and proceeded to reproduce the provisions
of s 77(3) of the BCEA. This vague and unsubstantiated averment
constituted the founding
affidavit’s only reference to a
contractual dispute.
[63]
In the circumstances it is necessary to set out what the PSA said in
the founding affidavit under
the rubric ‘
PURPOSE OF THIS
APPLICATION
’:
‘
18.
The principal purpose of this application is to seek specific
performance and also to compel the
first respondent to comply with
the following:
18.1.1 the collective
agreement dated 5 July 2007 being PSCBC Resolution 1 of 2007;
18.1.2 the collective
agreement dated 7 February 2008 being GPSSBC Resolution 1 of 2008;
18.1.3 government notice
dated 2 December 2010 issued and published by the second respondent
acting in accordance with s 18(1)
of the Act;
18.1.4 the NDPP’s
approval regarding the implementation of the OSD dated 29 July 2014;
and
18.1.5 the memorandum dated
24 November 2014 from the Chief Executive Officer of the first
respondent, Adv Karen van Rensburg
regarding the “proposal on
the implementation of the LP 10 in the NPA”.
19.
In addition, this application seeks declaratory orders declaring that
the conduct of the
first respondent in not complying with its
obligations as detailed in subparagraphs 18.1.1-18.1.5 is unlawful.
20.
Lastly, to declare that the first respondent created a legitimate
expectation to the 2
nd
to 55
th
applicants that
they are entitled to and would receive all the benefits extended to
legal professionals within the justice cluster.
21.
To advance the applicants’ case, I propose to deal with its
pertinent aspects in the
following terms:
21.1
First, salient background facts of this dispute;
21.2
Second, the remuneration of DDPP and Chief Prosecutors in terms of
the Act;
21.3
Third, applicability of the collective agreements to the NPA;
21.4
Fourth, whether the applicant’s members are entitled to the OSD
benefits;
21.5
Fifth, first respondent’s internal circulars to employees
regarding the OSD;
21.6
Sixth, whether the non-implementation of the OSD by the first
respondent constitutes an unfair labour
practice;
21.7
Seventh, the legal framework proposed in the determination of this
matter;
21.8
Eighth, whether the applicant has made out a case of unfair labour
practice in this matter; and
21.9
Lastly, conclusion.’
[64]
Read with the notice of motion and in context, the PSA in our view
clearly claimed specific performance
of obligations that had
allegedly arisen from the documents listed in paras 18.1.1 to 18.1.5
of the founding affidavit themselves,
not from employment contracts.
All of these documents were of collective and/or general nature.
[65]
Under the heading ‘SALIENT BACKGROUND FACTS’, the
deponent referred to a grievance
that she had lodged on 26 October
2015. She said:
‘
Central
to my grievance was the failure of the first respondent to implement
the OSD and to translate me to LP-10 as per the decision
of the
second respondent read with collective agreements cited above
including the approval by the NDPP of the implementation of
the OSD
within the prosecuting authority . . . .’
[66]
She proceeded to explain that her grievance set out the steps that
the NPA had taken ‘.
. . to implement the OSD in respect of
myself, before it became apparent that the First Respondent was no
longer going to implement
the OSD’. The deponent thus said that
her grievance tabulated the steps that the NPA had taken as follows:
‘
45.1
Individual work assessments, ensuring the 80/20 split between
production work and management/administrative
tasks, which was
approved by my supervisor, the Director of Public Prosecutions;
45.2
Completion of a choice whether to translate, which I did choose by
signing the performance agreement;
45.3
Completion of individual experience audits, which I filed;
45.4 An
exercise whereby I was informed of the estimated financial impact of
the translation, which I received
(although I dispute the accuracy
thereof);
45.5 the
undertaking given that translation to LP10 will be effected both at
meetings and in writing, as
referred to and expanded in my affidavit;
and
45.6 The
signing of an LP10 performance agreement for the 2015/2016
performance year, which I did.’
[67]
The deponent to the founding affidavit proceeded to say that all the
other DDPPs and CPs had
followed suit in lodging grievances. She said
that her grievance had been referred to the GPSSPC as a dispute for
resolution. She
stated that the matter was scheduled for arbitration
on 10 August 2016. The GPSSPC determined that it had jurisdiction in
respect
of the dispute and ordered the deponent to apply for
condonation. She proceeded to say that the condonation had
subsequently been
granted and that the arbitration proceedings were
not yet concluded.
[68]
This part of the founding affidavit was immediately preceded by the
following passage:
‘
It
is important to note that the implementation date communicated in the
meeting of 25 May 2015 and on the memorandum
dated 24
November 2014 is not the same date that was agreed upon at the
bargaining Council. It is neither the date the second respondent
endorsed nor the date communicated by the third respondent in their
respective determinations. The common implementation date agreed
upon
and duly communicated by the bargaining councils, second respondent
and the third respondent for the purposes of the OSD is
7 July 2007
and not 1 April 2015.’
[69]
In their context and in terms of their plain language, these
averments did not purport to found
relief on the terms of the
employment contracts between the NPA and the DDPPs and CPs (who, in
any event, were not parties to the
application). The founding
affidavit simply did not place reliance on employment contracts. That
is why the following was stated
in the answering affidavit:
‘
The
Applicants correctly do not and cannot rely on any enforceable
contractual right, because there was no binding agreement between
the
NPA and the Applicants – which is the hallmark of contractually
enforceable obligations.’
And
it came as no surprise that this averment had not been disputed in
the replying affidavit.
[70]
What was in fact relied upon in the founding affidavit, at length,
was that the failure to implement
the OSD in respect of the DDPPs and
CPs had constituted an unfair labour practice relating to promotion
and benefits, as defined
in s 186 of the LRA. In this regard the
founding affidavit concluded as follows:
‘
In
the circumstances, we submit that a proper case for unfair labour
practice has been made out by the applicant on behalf of its
members.
The applicant’s members remain financially disadvantaged by the
non-implementation of the OSD determined for their
benefit by the
second respondent acting in terms of s 18(1) of the Act and as per
collective agreements.’
In
terms of s 191 of the LRA such unfair labour practice disputes must,
of course, be dealt with in terms of the LRA. It is clear
from the
papers that the PSA’s reference to an alleged legitimate
expectation formed part and parcel of its case for an unfair
labour
practice.
[71]
For these reasons we conclude that the high court did not have
jurisdiction to hear the matter.
It had no power or authority to
determine the disputes and should have struck the matter from its
roll. In the exercise of our
discretion in respect of costs, the PSA
should be ordered to bear the costs of the abortive application in
the high court
and of the appeal, inclusive of the costs of two
counsel where so employed.
[72]
In the result we make the following order:
1
The appeal is upheld with costs, including the costs of two counsel
where
so employed.
2
The order of the high court is set aside and replaced with the
following:
‘
The
application is struck from the roll with costs, including the costs
of two counsel where so employed.’
H
K SALDULKER
JUDGE
OF APPEAL
C H G VAN DER MERWE
JUDGE
OF APPEAL
Appearances
Case
No. 353/2020
For
Appellant:
L Halgryn SC (with him P Mafisa)
Instructed
by:
State Attorney, Pretoria
State Attorney,
Bloemfontein
For
1
st
Respondent:
S Sethene
Instructed
by:
Couzin & Hertzog, Pretoria
Symington De Kok,
Bloemfontein
Case
No. 354/2020
For
Appellants:
F Boda SC (with him Z Ngwenya)
State Attorney,
Pretoria
State Attorney,
Bloemfontein
[1]
It appears that three members represented by the PSA were CPs. The
rest of the members were DDPPs. The appellants contended that
neither the DDPPs nor the CPs were covered by 2010 Determination.
[2]
The applicable Bargaining Council was the GPSSBC.
[3]
‘
GN R.
173,
GG
30722, 14 February 2008.’ In Annexure A, it was stated that
the determination dealt with ‘inclusive flexible remuneration
dispensation for senior management service (SMS) in the NPA’.
On 6 July 2012, the Minister published a further determination
in
‘GN 521,
GG
35494, 6 July 2012’, in terms of which the inclusive flexible
remuneration packages of DDPPs, CPs and Chief Special Investigators
were revised.
[4]
‘GN 1088,
GG
31486, 1 July 2007.’
[5]
‘GN 1146,
GG
33826, 2 December
2010.’
[6]
The
NPA Act makes provision for various categories of appointments. The
National Director is appointed in terms of s 10; the Deputy
National
Directors in terms of s 11; the Directors and Acting Directors in
terms of s 13; DDPPs in terms of s 15; and prosecutors
are appointed
to the office of the NDPP, at the seats of the High Courts as
envisaged in s 6 of that Act, at the Investigative
Directorate, as
well as at the lower courts, in terms of s 16 of the NPA Act.
[7]
Paragraph 35 of the high court’s judgment.
[8]
Section 157(1)
of the
Labour Relations Act 66 of 1995
provides:
‘Subject to the Constitution and section 173, and except where
this Act provides otherwise, the Labour Court
has exclusive
jurisdiction in respect of all matters that elsewhere in terms of
this Act or in terms of any other law are to
be determined by the
Labour Court.’
[9]
See s 157(2)(
a
)
of the LRA.
[10]
Gcaba v Minister for
Safety and Security and Others
[2009] ZACC 26
;
2010 (1) SA 238
(CC) para 66
;
My Vote Counts NPC v Speaker of the National Assembly
2016 (1) SA 132
(CC) para 132–134.
[11]
Lewarne v Fochem
International (Pty) Ltd
[2019] ZASCA 114
para 7.
[12]
Boxer Superstores
Mthatha and Another v Mbenya
2007 (5) SA 450
(SCA) para 5.
[13]
Baloyi v Public
Protector and Others
[2020] ZACC 27
;
2021 (2) BCLR 101
(CC);
[2021] 4 BLLR 325
(CC);
(2021) 42 ILJ 961.
[14]
Ibid para 33.
[15]
Ibid para 38.
[16]
Ibid para 40.
[17]
Ibid.
[18]
Ibid para 39.
[19]
Public Service Co-ordinating Bargaining Council established in terms
of s 27 of the LRA.
[20]
Baloyi v Public
Protector and Others
[2020] ZACC 27
;
2021 (2) BCLR 101
(CC);
[2021] 4 BLLR 325
(CC);
(2021) 42 ILJ 961 para 40.
[21]
Baloyi v Public
Protector and Others
[2020] ZACC 27
;
2021 (2) BCLR 101
;
[2021] 4 BLLR 325
; (2021) 42 ILJ
961para 42.
[22]
See
Duncan v Minister
of Environmental Affairs and Tourism and Another
[2010] 2 All SA 462
(SCA) para 15.
[23]
Section 16 of the NPA Act deals with the appointment of DDPPs and
prosecutors. Section 16(4) provides that insofar as any law
governing the public service pertaining to DDPPs and prosecutors may
be inconsistent with the NPA Act, the provisions of the
NPA Act
shall apply. The remuneration of DDPPs and prosecutors is provided
for in s 18(1) of the NPA Act. In terms of s 18(1)
(b)
of that Act, the cost-of-living adjustments are effected in
accordance with the cost-of-living adjustments determined for
legally
qualified personnel in the Public Service. In terms of s 19
of the NPA Act, conditions of service of DDPPs and prosecutors and
prosecutors are determined in terms of the provisions of the Public
Service Act.
[24]
Biowatch Trust v
Registrar, Genetic Resources Others
[2009] ZACC 14
;
2009 (6) SA 232
(CC). The principle laid down in
that case, which is commonly referred to as the
Biowatch
principle, laid down that an unsuccessful party in proceedings
against the State should be spared from paying the State’s
costs in constitutional matters.
[25]
Lawyers
for Human Rights v Minister in the Presidency
and
Others
[2016] ZACC 45
;
2017 (1) SA 645
;
2017 (4) BCLR 445
(CC) para 20.